SUPREME COURT OF NOVA SCOTIA
Citation: Halifax (Regional Municipality) v. Canadian Union of Public Employees, Local 108, 2010 NSSC 234
Date: 20100617
Docket: Hfx 297912
Registry: Halifax
Between:
The Halifax Regional Municipality
Applicant
v.
Canadian Union of Public Employees,
Local 108 – Halifax Civic Workers’ Union
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Glen G. McDougall
Heard: June 17, 2009
Written Decision: June 18, 2010
Subject: Judicial Review; Application to quash or, alternatively, to set aside the award of an arbitrator in a labour matter.
Summary: The employer, after a progressive series of discipline, terminated its employee. The Union grieved the matter pursuant to the provisions of the Collective Agreement and the Trade Union Act. A hearing was conducted and adjourned to give the employee and the Union more time to gather more evidence of a suspected disability. When the hearing got underway again no further evidence of a disability was offered. The arbitrator then ruled in favour of the employer and dismissed the grievance subject to the proviso that should the employee wish to present further evidence of a disability he could indicate his desire to do so within 30 days.
Issue: (1) Standard of review; (2) Requirement for arbitrator to provide a final and binding decision; (3) Duty to accommodate; (4) Burden of proof; (5) Issue estoppel and abuse of process.
Result: The Union and the employee were given an opportunity to present evidence of a potential disability and decided not to avail themselves of that opportunity. The arbitrator, after affording them that opportunity, was required to render a decision that was final and binding. While rendering a decision the arbitrator kept the door open for a further opportunity by imposing a “condition subsequent” to his final decision. He lacked the jurisdiction to do so. The employee’s termination is confirmed.
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